[Federal Register Volume 84, Number 236 (Monday, December 9, 2019)]
[Proposed Rules]
[Pages 67243-67246]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-26521]



[[Page 67243]]

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DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 103, 106, 204, 211, 212, 214, 216, 223, 235, 236, 240, 
244, 245, 245a, 248, 264, 274a, 301, 319, 320, 322, 324, 334, 341, 
343a, 343b, and 392

[CIS No. 2627-18; DHS Docket No. USCIS-2019-0010]
RIN 1615-AC18


U.S. Citizenship and Immigration Services Fee Schedule and 
Changes to Certain Other Immigration Benefit Request Requirements

AGENCY: U.S. Citizenship and Immigration Services, DHS.

ACTION: Proposed rule; extension of comment period; availability of 
supplemental information.

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SUMMARY: The Department of Homeland Security (DHS) is extending the 
comment period for its November 14, 2019, notice of proposed rulemaking 
(NPRM or ``proposed rule'') regarding the USCIS Fee Schedule and 
Changes to Certain Other Immigration Benefit Request Requirements. DHS 
is also announcing the availability of supplemental information to 
inform the public of information related to the NPRM. This supplement 
describes the projected costs associated with supporting immigration 
adjudication and naturalization services for which USCIS will reimburse 
U.S. Immigration and Customs Enforcement. This document also clarifies 
the comment period on the proposed information collection revisions in 
the NPRM. This announcement ensures that the public has an opportunity 
to comment on the supplemental materials.

DATES: The comment period for the NPRM published November 14, 2019, at 
84 FR 62280, is extended to December 30, 2019.

ADDRESSES: You may submit comments, identified by DHS Docket No. USCIS-
2019-0010, by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow this site's instructions for submitting comments.
     Mail: Samantha Deshommes, Chief, Regulatory Coordination 
Division, Office of Policy and Strategy, U.S. Citizenship and 
Immigration Services, Department of Homeland Security, 20 Massachusetts 
Avenue NW, Mailstop #2140, Washington, DC 20529-2140. To ensure proper 
handling, please reference DHS Docket No. USCIS-2019-0010 in your 
correspondence. Mail must be postmarked by the comment submission 
deadline. Please note that USCIS cannot accept any comments that are 
hand delivered or couriered. In addition, USCIS cannot accept mailed 
comments contained on any form of digital media storage devices, such 
as CDs/DVDs and USB drives.

FOR FURTHER INFORMATION CONTACT: Kika M. Scott, Chief Financial 
Officer, U.S. Citizenship and Immigration Services, Department of 
Homeland Security, 20 Massachusetts Avenue NW, Washington, DC 20529-
2130, telephone (202) 272-8377.

SUPPLEMENTARY INFORMATION: 

I. Public Participation

    DHS invites you to participate in this rulemaking by submitting 
written data, views, or arguments on all aspects of the proposed rule. 
Comments providing the most assistance to DHS will reference a specific 
portion of the proposed rule, explain the reason for any recommended 
change, and include data, information, or authority that supports the 
recommended change.
    Instructions: All submissions should include the agency name and 
DHS Docket No. USCIS-2019-0010 for this rulemaking. Providing comments 
is entirely voluntary. Regardless of how you submit your comment, DHS 
will post all submissions, without change, to the Federal eRulemaking 
Portal at http://www.regulations.gov and will include any personal 
information you provide. Because the information you submit will be 
publicly available, you should consider limiting the amount of personal 
information in your submission. DHS may withhold information provided 
in comments from public viewing if it determines that such information 
is offensive or may affect the privacy of an individual. For additional 
information, please read the Privacy Act notice available through the 
link in the footer of http://www.regulations.gov.
    Docket: For access to the docket, go to http://www.regulations.gov 
and enter this rulemaking's eDocket number: USCIS-2019-0010. The docket 
includes additional documents that support the analysis contained in 
the proposed rule to determine the specific fees that are proposed. 
These documents include:
     Fiscal Year (FY) 2019/2020 Immigration Examinations Fee 
Account Fee Review Supporting Documentation;
     Regulatory Impact Analysis: U.S. Citizenship and 
Immigration Services Fee Schedule and Changes to Certain Other 
Immigration Benefit Request Requirements; and
     Small Entity Analysis for Adjustment of the U.S. 
Citizenship and Immigration Services Fee Schedule notice of proposed 
rulemaking (NPRM).
    You may review these documents on the electronic docket. The 
software \1\ used to compute the immigration benefit request fees \2\ 
and biometric fees \3\ is a commercial product licensed to USCIS that 
may be accessed on-site, by appointment, by calling (202) 272-1969.\4\
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    \1\ USCIS uses commercially available activity-based costing 
(ABC) software, SAP Business Objects Profitability and Cost 
Management, to create financial models as described in the 
supporting documentation.
    \2\ Benefit request means any application, petition, motion, 
appeal, or other request relating to an immigration or 
naturalization benefit, whether such request is filed on a paper 
form or submitted in an electronic format, provided such request is 
submitted in a manner prescribed by DHS for such purpose. See 8 CFR 
1.2.
    \3\ DHS uses the terms biometric fees, biometric services fees, 
and biometric fee synonymously in this rule to describe the cost and 
process for capturing, storing, or using biometrics.
    \4\ The proposed rule describes key inputs to the ABC model (for 
example, budget, workload forecasts, staffing, and completion 
rates).
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II. Extension of Comment Period

    On November 14, 2019, DHS published the aforementioned proposed 
rule. See 84 FR 62280. DHS has received requests to extend the comment 
period for this rulemaking. In consideration of these requests, and to 
provide additional time for the public to review the supplemental 
information below, the comment deadline is extended from December 16, 
2019 through December 30, 2019.
    DHS also notes and clarifies the comment period for the information 
collection requests (forms) that the proposed rule would revise in 
accordance with the Paperwork Reduction Act. The comment period for the 
NPRM will end on December 30, 2019, including comments on the forms DHS 
must submit to OMB for review and approval under the Paperwork 
Reduction Act of 1995, 44 U.S.C. 3501-12. The NPRM contained erroneous 
references to comments being accepted for 60 days from the publication 
date of the proposed rule. See 84 FR 62349, 62350, 62351, 62352, 62353, 
62354, 62355, 62356.

III. Supplemental Information Regarding ICE Activities To Be Funded by 
the IEFA

a. Background

    In the proposed rule, DHS proposed to recover, via USCIS' fee 
schedule, the full amount of the proposed transfer from USCIS to ICE 
that was contained in past budget requests. See 84 FR 62287. The IEFA 
may be used to reimburse appropriations that fund enforcement and 
support positions of U.S. Immigration and Customs

[[Page 67244]]

Enforcement (ICE) to the extent that such positions support 
adjudication and naturalization services.
    DHS proposed to recover as much as $207.6 million in ICE expenses 
via USCIS' fee schedule, and described some categories of eligible 
costs. See id. DHS wrote that it ``continues to study which ICE costs 
would be reimbursable through the IEFA, and may announce more precise 
cost estimates prior to publication of a final rule. To the extent that 
such cost estimates are lower than the $207.6 million figure currently 
accounted for in the rule, fee levels would be revised downward.'' See 
id. at 62288. This document announces such cost estimates, which are 
lower than the $207.6 million figure in the proposed rule. DHS 
therefore anticipates a downward adjustment in the proposed fees. See 
id.
    Specifically, following further study, DHS now proposes to recover, 
via USCIS' fee schedule, $112,287,417 for allowable costs, instead of 
the $207.6 million referenced in the proposed rule. DHS proposes to 
establish USCIS fees at a level necessary to recover the full amount of 
this proposed transfer in addition to the costs of operating USCIS. 
This document explains how those ICE costs were determined.

b. Methodology

    DHS estimated the ICE projected costs to be funded through the IEFA 
using Activity-Based Costing (ABC) consistent with OMB Circular A-25, 
the Statement of Federal Financial Accounting Standards (SFFAS-4): 
Managerial Cost Accounting Concepts and Standards for the Federal 
Government, and other relevant financial management directives as 
described in the November 14, 2019 proposed rule. 84 FR 62280, 62283. 
ICE used an ABC approach to define full cost, outline the sources of 
cost for providing the investigation of immigration adjudication and 
naturalization services and the collection, safeguarding, and 
accounting for fees deposited in and funds reimbursed from the IEFA. 
These costs do not include costs associated with the Student and 
Exchange Visitor Program (SEVP). ICE conducts a separate ABC analysis 
to set SEVP fees.
    A critical element in building the ABC model was for ICE to 
identify the sources and cost for all expenses in providing immigration 
adjudication and naturalization services. Consistent with the 
applicable law and guidance as stated in the November 14, 2019 proposed 
rule, the proposed transfer from USCIS to ICE would recover the full 
cost of providing immigration adjudication and naturalization services. 
After identifying which case activities can be covered by IEFA funds, 
the total investigative hours were estimated for the case activities. 
ICE used the full cost of providing immigration adjudication and 
naturalization services to calculate the amount needed to be 
transferred from the USCIS-managed IEFA to ICE to fully recover all 
costs for ICE administered immigration adjudication and naturalization 
services.\5\
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    \5\ Additional HSI agents and requisite support staff would need 
to be hired in order to complete the additional work contemplated.
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c. Fees To Support Operations

    ICE Homeland Security Investigations (HSI) would use funds 
transferred from the IEFA to support investigations of immigration 
benefit fraud via Document and Benefit Fraud Task Forces (DBFTFs), 
Operation Janus, the HSI National Lead Development Center, and other 
immigration adjudication and naturalization activities. Under INA 
section 286(m) and (n), 8 U.S.C. 1356(m) and (n), adjudication and 
naturalization services include all costs for work related to 
determining whether applicants may receive the benefit of such 
services. The cost of the services provided includes the cost of any 
investigatory work necessary to adjudicate applications or provide 
services, including investigations of fraud. Moving forward, USCIS will 
reimburse ICE for costs associated with supporting immigration 
adjudication and naturalization services. Table 1 provides a detailed 
list of case activities that can be paid for with IEFA funds as they 
directly relate to the investigation of the immigration adjudication 
and naturalization process.

             Table 1--Identity and Benefit Fraud Activities
                          [As of November 2019]
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           Activity                       Detailed description
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General Investigative          Covers investigation of benefit fraud of
 Activities.                    adjudication and naturalization
                                services.
Employment Fraud.............  Covers employment benefit fraud in the
                                context of adjudication and
                                naturalization services.
Family Fraud.................  Covers family-based benefit fraud in the
                                context of adjudication and
                                naturalization services.
Non-Employment Visa Fraud....  Closely tied to benefit fraud of
                                adjudication and naturalization
                                services.
Marriage Fraud...............  Covers marriage-based benefit fraud in
                                the context of adjudication and
                                naturalization services.
Refugee Fraud................  Covers refugee-based benefit fraud in the
                                context of adjudication and
                                naturalization services.
Asylum Fraud.................  Covers asylum-based benefit fraud in the
                                context of adjudication and
                                naturalization services.
Citizenship/Naturalization     Covers benefit fraud of adjudication and
 Fraud.                         naturalization services.
Deferred Action for Childhood  Covers activities related to specific
 Arrivals (DACA) Fraud.         fraud investigations that USCIS refers
                                to ICE for investigation.
Petition for Relief of         Covers costs associated with
 Seizure.                       investigating relief of seizure when
                                property had been seized as part of a
                                fraud investigation in the context of
                                adjudication and naturalization
                                services.
Benefit Fraud................  Covers identity benefit fraud cases
                                directly related to adjudication and
                                naturalization fraud.
Unauthorized Practice of       Covers fraud related to individuals
 Immigration Law (UPIL)/        acting as an attorney or authorized
 Notario Fraud.                 legal representative for aliens in an
                                attempt to fraudulently obtain a USCIS
                                benefit.
Document Benefit Fraud Task    Targets criminal enterprises and
 Force (DBFTF).                 individuals who attempt to use document
                                and benefit fraud to compromise the
                                integrity of the immigration system.
                                IEFA-funded personnel improve DBFTFs'
                                information sharing, reduce duplication
                                of efforts, and increase the
                                effectiveness of investigations
                                alongside our Federal, State, and local
                                law enforcement partners.
Operation Janus (Special       Covers naturalization fraud by an alien
 Interest Alien (SIA) Fraud).   that's been identified through
                                biometrics for having an alternative
                                identity.
EB-5 Investor Fraud..........  Covers benefit fraud case for investing
                                $900,000+ into a business solely to gain
                                immigration status.

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Juvenile Deferred Action.....  Covers routine investigative activities
                                to support DACA adjudication and/or to
                                confirm the DACA application
                                information.
H&L Visa Fraud...............  Covers benefit fraud by illegally
                                obtaining H and L visas.
Benefit Fraud Assessment.....  Statistical analysis of benefit fraud.
HQ-Denaturalization Referrals  Covers naturalization fraud relating to
                                the vetting of denaturalization
                                referrals from the Department of State
                                and other federal agencies, now being
                                conducted by ICE.
Executive Office for           Covers investigative activities that
 Immigration Review (EOIR)      focus on USCIS fraud that were referred
 Referral.                      from EOIR.
USCIS Historical Fingerprint   Covers activities related to HFE
 Enrollment (HFE) Referrals.    referrals from USCIS.
Military Marriage Fraud......  Covers benefit fraud from a military
                                marriage.
Sex Offender Naturalization..  Covers fraud during the naturalization
                                process, by not disclosing the fact that
                                they have a criminal record relating to
                                sex offenses, and the benefit would not
                                have been awarded had the criminal
                                history been disclosed.
------------------------------------------------------------------------

    DHS notes that the aforementioned list of activities serves as the 
basis for cost projections and is not intended to be all-inclusive. DHS 
may use IEFA revenue to reimburse any IEFA-eligible expense, regardless 
of whether DHS considered those expenses when setting fees.

d. Expansion of Investigations

    ICE HSI case hours from Fiscal Year (FY) 2017, FY 2018, and FY 2019 
are used to estimate future expenditures on those activities. Using an 
activity-based cost model consistent with DHS methodology for USCIS fee 
setting, the number of case hours were translated into total cost of 
full-time equivalents (FTEs) needed to cover activities that DHS 
proposes to fund with IEFA funds. DHS estimated a 5.2 percent growth 
rate from FY 2020 projections and 1.9 percent constant rate to FY 2021 
to fully fund the cost of future expenses consistent with recent trends 
in the hours spent providing immigration adjudication and 
naturalization services. The projected growth rate is based on the 
growth rate for case hours in FY 2017 (517,531 hours), FY 2018 (547,774 
hours), and FY 2019 (572,004 hours). There was a 5.84 percent increase 
in HSI investigative case hours from FY 2017 to FY 2018 and a 4.42 
percent increase in investigative case hours from FY 2018 to FY 2019. 
The DHS forecast of 5.2 percent growth in FY 2020 based on historical 
averages was applied to account for future costs.
    Table 2 outlines the percent change of activity hours by fiscal 
year.

                   Table 2--IEFA Hours by Fiscal Year
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                                                 IEFA activity   Percent
                  Fiscal year                        hours       change
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FY 2017.......................................         517,531  ........
FY 2018.......................................         547,774      5.84
FY 2019.......................................         572,004      4.42
FY 2020 *.....................................         601,748       5.2
FY 2021 *.....................................         601,748         0
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* Denotes forecast.

e. Projected Cost Estimates by Fiscal Year

    In FY 2017, 2018, and 2019 HSI agents worked a total of 517,531 
hours, 547,774 hours and 572,004 hours, respectively, on IEFA 
reimbursable related activities. To determine the number of IEFA 
activity hours for FY 2020, ICE analyzed historical growth rates from 
the three preceding years, which averaged approximately 5.2 percent. 
The IEFA activity hours for FY 2021 may remain the same. This results 
in a ``total hours'' projection of 601,748 hours for FY 2020, and 
601,748 hours for FY 2021. Hours were then translated into an FTE count 
for an ICE, HSI Criminal Investigator (U.S. Office of Personnel 
Management Classification Position Number 1811).\6\ Total FTEs were 
then translated into a total cost for all HSI criminal investigators. 
Total cost of HSI criminal investigators was derived using an ICE 
Budget-approved modular cost table that accounts for salary, 
compensation, locality payment, mission essential equipment (e.g., 
uniforms, technical equipment, supplies, and training), and inflation.
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    \6\ U.S. Office of Personnel Management, General Schedule 
Qualifications Standards, https://www.opm.gov/policy-data-oversight/classification-qualifications/general-schedule-qualification-standards/1800/criminal-investigator-treasury-enforcement-agent-1811/.
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    Mission Support staff is also needed to support the investigators. 
To determine the mission support FTEs required, a mission support ratio 
of 0.32 to each criminal investigator was derived by taking the total 
number of mission support FTEs divided by the total number of 
investigators from the ICE FY 2017 to FY 2019 Table of Organization 
Position System (TOPS) data. This FTE total was then translated into 
total Mission Support Cost using the ICE Budget-approved cost table 
that accounts for salary, compensation, locality payment, mission 
essential equipment, supplies, trainings, and inflation.
    ICE estimates that it will spend approximately 601,748 
investigative hours on IEFA reimbursable activities in FY 2021. That 
results in an estimated 355 criminal investigators and 113 mission 
support professionals being required.\7\ Table 3 outlines the cost 
estimate for the services provided.
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    \7\ Actual needs may be slightly more or less based on the 
ability to hire and on-board personnel and the level of services ICE 
provides to support USCIS within a given year.

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                                     Table 3--Cost Estimate for Immigration Adjudication and Naturalization Services
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                                                                              HSI FTE Frontline
                                                                                (1811 series)     Mission support      HSI mission      Total cost (HSI
                                                           IEFA     HSI 1811    cost (HSI 1811   FTE (HSI 1811 FTE   support cost (MS       1811 FTE
                      Fiscal year                        activity     FTE        FTE * fully      * MS FTE to 1811     FTE * fully      frontline cost +
                                                          hours               burdened 1811 FTE        ratio)        burdened MS FTE      HSI MS cost)
                                                                                    cost)                                 cost)
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FY 2017...............................................    517,531        305        $77,750,217                 96        $17,021,439        $94,771,656
FY 2018...............................................    547,774        323         82,293,713                102         18,016,122        100,309,835
FY 2019...............................................    572,004        337         85,933,858                107         18,813,040        104,746,897
FY 2020...............................................    601,748        355         90,402,418                113         19,791,318        110,193,736
FY 2021 *.............................................    601,748        355         92,120,064                113         20,167,353        112,287,417
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* Denotes forecast.

    As a result, DHS projects an annual transfer to ICE of 
$112,287,417, rather than $207.6 million. Because the projected annual 
transfer to ICE is lower than DHS previously proposed, the proposed fee 
levels would be reduced accordingly. As the NPRM stated, the fees that 
DHS proposed may change in the final rule based on policy decisions, in 
response to public comments, intervening legislation, and other 
reasons. 84 FR 62327. In the NPRM, to reduce uncertainty, USCIS laid 
out what the fees would be if certain conditions materialize and 
explained that the final fees would be one of the scenarios presented, 
or an amount in between the highest and lowest fees proposed. Id. Table 
21 in the NPRM outlines the proposed fee levels contained in the 
proposed rule that would result if the ICE transfer of $207.6 million 
either did or did not occur. Because the estimated amount of the 
transfer is $112,287,417 million, the resulting fee schedule would, all 
else remaining the same, be somewhere between those two levels.

Chad F. Wolf,
Acting Secretary.
[FR Doc. 2019-26521 Filed 12-6-19; 8:45 am]
 BILLING CODE 9111-97-P